The archived blog of the Project On Government Oversight (POGO).

Nov 19, 2012

Wyden Pumps the Brakes on Anti-Leaks Legislation

By SUZIE DERSHOWITZ and ANGELA CANTERBURY

Senator Ron Wyden (D-Ore.) is holding firm on free speech rights. Last week, the Intelligence Authorization Act for Fiscal Year 2013 (S. 3454) was “hotlined”—the first step in clearing a bill for unanimous consent in the Senate. Usually, if there are no objections to the hotlined bill within a given amount of time, and leadership agrees, it is passed. But Wyden put the brakes on this legislation due to his concerns about the bill’s so-called anti-leak provisions.

Many of the provisions in Title V of the bill would reduce access to information the public has a right to know, put whistleblowers in jeopardy, and threaten government accountability. Thanks to Wyden’s objection, the Senate was unable to fast-track this far-reaching bill. In June, the Project On Government Oversight and more than 25 of our allies sent a letter to the House and Senate Intelligence Committees objecting to the bill’s anti-speech provisions, which diminish government transparency and jeopardize whistleblowers’ rights. The letter states:

While we recognize that leaks of appropriately and properly classified information are a serious problem, the American public requires access to some information about government conduct in order to foster an informed and meaningful national discussion, particularly about such issues as the use of drones to kill American citizens and other persons.

POGO and our allies in the government accountability community are currently organizing another letter thanking Senate leadership for delaying action on the bill until these concerns can be fully addressed. Any legislation intended to stop leaks of classified information should be carefully considered through an open process that provides ample opportunity for engaging in debate.

Sen. Ron Wyden

As currently drafted, these so-called anti-leak provisions would impair the news media’s ability to access legitimate sources of information in order to report on critical foreign policy and national security issues. Senator Wyden’s press release stresses that “the bill prohibits most intelligence community officials from speaking with the media on background about unclassified issues, even if they would otherwise be authorized to do so.” This would stifle reporting and keep the public in the dark about critical events.

One particularly problematic section of the bill, Section 511, grants the Director of National Intelligence and heads of intelligence agencies sweeping new authority to penalize intelligence community employees and former employees for leaks (including stripping them of their pension benefits). This new authority would be granted without establishing checks for adequate oversight or appellate review. Such a provision could have grave consequences for federal employees’ due process rights and a chilling effect on intelligence community whistleblowers.

These provisions in the Intelligence Authorization Act are in part a knee-jerk response to the hysteria in Washington over unauthorized leaks. The Obama Administration has charged more Americans for leaking information to the media under the Espionage Act than all previous administrations combined. In light of this effort to stop the flow of classified information to the media and to send a strong message to government workers, it is important to recognize the elemental distinction between engaging in undercover espionage and blowing the whistle on illegal or unconstitutional government acts. The former is beyond reprehensible, but the latter could strengthen our democracy by keeping the government accountable and the public informed.

These issues are complex, and there will always be inherent tensions between protecting national security information and ensuring the public’s right to know. But due process rights, free speech, and freedom of the press are cornerstones of American democracy worth protecting. We appreciate Senator Wyden’s commitment to these values. We hope others in Congress will likewise object when these democratic foundations are jeopardized in the name of national security—whether in the Intelligence Authorization bill or elsewhere.

Suzie Dershowitz is a public policy fellow for the Project On Government Oversight. Angela Canterbury is the director of public policy for the Project On Government Oversight. Image from Flickr user pirateyjoe.